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tv   [untitled]    December 2, 2012 7:30pm-8:00pm PST

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i'm not sure that you want to reveal any more than you would otherwise, just because someone added a sunshine allegation to a complaint. >> where do we discuss disclosing the contents of the investigative? >> it doesn't, but where it says, "staff shall initiate a complaint of the alleged violations." then staff could be initiating the complaint, but they would have to import the allegation facts, whatever, from the complaint presumably filed by another. unless the original complaint was staff-initiated. if someone hypothetically complained against a department head and said that they absconded with funds and oh, by the way didn't give me documents i was entitled to,
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you would bifurcate the complaint and handle the one as improper governmental activities and the other parts a sunshine violation. but i just want to be sure that people have enough information to go on the sunshine complaint, but you wouldn't necessarily reveal who the underlying complainant was. you would necessarily have to reveal who the respondent was. >> it's an interesting point. >> sorry. >> i wonder what the staff thinks on that? because the staff can't initiate a complaint either on its own awareness or it can say we heard about it from x, but we're going to erase x and issue a complaint? >> >> first of all we're bound by
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the confidentiality provisions so we would be very careful to make sure nothing that would be considered confidential was disclosed. we also would have the opportunity to file on behalf of somebody or staff-initiated, then it's staff versus public official x. so the original complainant would be hidden or masked in that sense. >> i have no quarrel with that and just wanted to anticipate how that might play out. my last comment and i'm sorry i'm going back to the chapter 2/chapter 3 issue for a second on the 2 versus 3 votes. i have no problem with the chapter 3 presumption that if you don't have three votes there is no violation. but under chapter 2 if there aren't three votes to not find a violation, then it sort of suggests that there was a
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violation. and that from my perspective is potentially problematic. i don't want there to be that inference that just because there weren't sufficient votes to find no violation that therefore there was, or might have been. i mean, it kind of leaves a cloud there. that is causing me some heartburn or something. thanks. >> mr. shen, first question for you, when you are out of the room, that is had your name is invoked. there was a question raised as to whether we can amend the regs given the agenda? do you have an opinion on that? >> you mean just a noticing question? yes, we can change the regs. we do change regs in ordinances and approve them out the same day. >> is the notice in the agenda
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sufficient to do so? i'm sorry, we want to change our regular enforcement regulations as well? >> i think we got our answer. >> decision points 5, 6 and 7. >> sorry, just a second. >> sure, take your time,
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please.
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i think the better practice would be to make the change at a later meeting. because it concerns super and complaints. okay, let's defer 5-7 unless the commission not properly noticed. the other issue that may be worth discussing is this idea that if under chapter 2, if we
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don't have a majority voting to find no violation, are we comfortable with two or fewer -- are we comfortable with the situation where we wouldn't have a major one way or the other? >> would you just remind us sort of for the record and the discussion how many commissioners it takes to hold a meeting in the first place? it's not that there could be one person or two people here. >> there have to be three. sometimes four, depending on the issue. but for this, i think we could do it with three. but you would be in the situation potentially where you had three members of commission hearing the issue you wouldn't get a majority either way. thus, by finding a violation with only even one commissioner
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supporting the finding of the violation. which is somewhat troubling. i don't know if staff, before i hear from you mr. pillpa. >> so we could put a provision in here that says five members must be here in order to have a hearing. to ensure that, you know, that situation doesn't occur. even with four members you could still have a 3-1 vote and that would be perfectly fine. you would have a 3-0 vote with just three people sitting here and that would be perfectly fine too. if you want to ensure that a party comingbefore you has full access to the commission rather than four or three, we could certainly write in here saying no hearing will be held unless
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all five commissioners will be there. although that could be potentially issues someone gets suddenly ill or there is an emergency. then we have to suddenly cancel everything. >> you would flip it. you could make it that you need three votes to find the respondent has committed a violation and make the burden easier on the respondent. the burden would remain the same on the respondent. >> mr. chatfield. >> hopefully i will make it easier.
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cause of hearing was developed because because there was a concern had a something coming from the task force, they have already made a decision. so the commission wanted to ensure that that commission or that decision was sort of coming in. the presumption is a violation has occurred when had he come here. so the respondent has to show why the task force was incorrect in making that decision for you to move on the show-cause part, not chapter 3. so i don't know if that will necessarily -- that would wind up changing the entire show-cause procedure probably or basically taking the presumption of a violation occurred out, if that was to happen. >> i was trying to think outloud as to whether we could maintain that presumption while switching around the vote. but maybe not.
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>> can we simply say at a meeting attended by four or more commissioners. a meeting or meetings? >> you still run the risk. >> or participation of four or more commission members? >> you still run the risk of 2-2? >> could you add one more thing? when we have hearings, we always endeavor to have all five commissioners here. so it's been very rare that that hasn't happened. i think it's only happened once and that was not for a part of a hearing, but to make some post-hearing decisions. >> we have had plenty of meetings where a commissioner has had an excuse the absence. >> i don't think we have ever had a hearing. >> right, but this would be at a regular meeting. >> okay. so i think we would approach this at the next practicable meeting is the one that all five commissioners
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were in attendance. make that a practice. you know, if you want to memorializes it, now you can. but we may not always need to do it. if we institute it as customarily how we handle things it would leave flexibility in scheduling. >> in event of a 4-commission member hearing and a 2-2 vote, there seems to be two options. one is since there is a presumption and a prior finding that 2-2 leaves that i.e., the sunshine task force finding remains -- goes into effect. becomes our finding, because we were split 2-2, i.e., don't have a three-person vote. or as we discussed earlier, could we carried forward to a
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subsequent meeting. if the commissioners at the 2-2 say that was a complicated hard-fought and sincere, this is one that we really ought to bring forward to the next meeting and allow the fifth commissioner the possibilities of doing this by a 3-2 vote, whichever way that commissioner should go. but i think we have those same options at the 4-person meeting could yield a 3-1 or 4-0 result without finding us to always have five for those. we don't know how numerous, how frequent an occurrence this might be. i respect the practice and i appreciate the executive
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director's point, but it's a high standard. part of what we want to do is bring them forward and act on them in a timely, responsive way. i am just trying to figure out how to make solid decisions, but without being unrealistic about how often we can get five? >> i think that is a good compromise. mr. st. croix, did you have something to add? >> no, i was just thinking that the circumstances are going to be limited anyway. if a vote is -- if there is four people and the vote is 3-1 against the respondent, the result is not going to change even if the other commissioner was there. and if there are three commissioners, and the vote is 3-0, the addition of two commissioners wouldn't change the outcome. >> right. it's the situation where it's 2-1 and the 1, particularly in a situation where the 1 is the
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vote to find the violation. and then you have basically found a violation based on one vote. >> yes, so if the situation was 2-1 or 2-2 the outcome could change. in which case that is when you would not postpone, but continue the hearing to the next session. >> i like this idea of requiring four. we require it for some things already and i think this is something where it would be helpful. >> are you saying a vote of four or four people at the meeting? >> four people in attendance is what i was thinking. >> yes, that is right. >> we have got to lean on the staff here a bit. we don't want to do something -- . that is the simplest thing to doj because you can just add a
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sentence under the scheduling of show-cause hearing. that if four commissioners aren't in attendance when a hear song the agenda, -- a hearing is on the agenda it has to be held over to the next commissioner where four members are present. >> is that something we want for chapter 3 as well? i know we have a different burden and presumption. there could be a perception that we're treating one more seriously than the other based on our requirement of how many commissioners need to attend. >> i think it would be fair to
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add to both. >> okay. if that is the case, can it just be added to section 4 rather than being added to both 2 and 3? >> we can do that. >> okay. any objections from the commissioners on that? do we need a revote and take public comment on it again? >> yes. >> let's take public comment on it? mr. pillpa? >> i think where we're going with this is on chapter 4ie2 the commissioner or chp may rescheduled the hearing for good cause and might read "may continue or reschedule a hearing at their discretion for good cause," good cause may include absence of one or more commissioners. >> i think that is a little too discretionary for what we're talking about. >> okay. >> anyway, it could possibly go there. >> somewhere in that range.
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i think on the chapter 2 question, i would probably not change the burden. i think the standard of proof and burden to be kind of makes sense. that is what the whole basis of the chapter 2 versus 3 thing was. i think i would be better with three positive votes needed to make a finding that there was a violation. so even if it requires three votes to find a violation, you can still hold the person to the burden, if they didn't meet their burden, then you go the other way. although it does play out in the same ways that we have talked about. i also would not substitute -- there was a suggestion at one point to substitute the finding of task force for the commission in the event that the commission doesn't overturn the tank ask force.
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i think the task force and the commission stand separately and i would not subject that you take the task force recommendation on its own. you can choose to, but i don't think there should be a regthat provides in the absence of a commission decision to the contrary. i think there are really different powers and duties and i wouldn't want to complete those. i think i have said enough for the moment. thanks. >> respectfully i disagreeing with member pillpa with respect to burden of proof, with respect to chapter 2. the fact that the matter has been referred from the task force means that the task force
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has found a violation. perhaps a willful one. and i think that the burden of proof should definitely rest with the resplendent in that case. as a matter of fact, i think that if you recall, when the task force refers we're not looking for re-adjudication. again, we have five new members and it's possible that consensus would change. but when this matter has come before you, before us, with the task force previously constituted, the consensus and a very strong consensus of the task force has been we're not sending matters to you for readjudication. we're sending them for enforcement of our orders of
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determination. >> i agree. the point of this was to provide some deference to the task force decision and i for one am comfortable with the possibility on a 2-2 vote a task force find would be upheld, if the commission felt that -- the [tpha-ebz/] were [pr-erpbt/] felt that was propriety. if they felt like they wanted a full five-member commission to decide it, they can so find and continue the hearing. but i'm comfortable with the arrangement we have just discussed. any objections from the commissioners? so we would add a sentence perhaps to section 1 e2 that the commission or
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commission chair shall reschedule the hearing if at least four members cannot attend. i'm sure there is a better way to say that, but that idea be included therein? >> let me read something for you. the only concern when using the language," shall," if the fifth commissioner for some reason cannot be present, but feel that they want to participate, seems to me you should have discretion. if that commissioner would say if you could schedule it when i'm there. >> i'm sorry, i meant to suggest that they shall
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continue it there aren't at least four there, but leave in sentence about rescheduling for good cause, which would be. but if you have better language, i'm all ears. i just made it up on the spot. >> i just want to leave some discretion in the chair as to whether or not it those schedule it if there are four going to be present. >> that is important. do we need actual precis language to revote on? >> can i read this? >> at any time a hearing is placed on the generated four or more commissioners must be in attendance. otherwise the hearing must be continued to the next meeting. excuse me, the hearing shall be continued to the next meeting.
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>> that is just addition to what is already there? >> correct, i'm not taking anything out. >> does that sound reasonable? >> yes. >> is there a motion to amend our finding with respect to chapter 4 to reflect the sentence read into the record by mr. st. croix? >> so moved. >> second. >> all in favor? >> ea. >> opposed? hearing none, let's move on to decision point 8. i am certainly sensitive, mr. knee, to your concern that there are new task force
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members. however, i think for me at least, given how long this process has phon gone and the great detail of input we have gotten from you and other members of task force, i do think we need to move forward here. certainly we're not closed to improvements to these regulation as we go forward and close this. any other comments with respect to decision point 8? >> i agree with chair hur and the fact that we can take insights from the task force and it's new membership, and improve this or improve it in light of our experience is telling. it has been a long time.
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and it's tempting to say what is another month or two? but the challenge of even getting us together or the task force together for additional meetings has proven so cumbersome, although i'm usually a great optimist, i'm not optimistic we could do it that quickly and then time would move on. i also am remembering the encouragement that we have received at a number of meetings to actually be able to bring forward some of these matters. and for me, that weighs heavily in the balance as well, to be able to actually move them, and pay them the respect that they deserve and bring them to our docket at our meetings. i wonder if we do something that would, for example, in addition to whatever the task
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force decides to do to convey their thoughts to us and something that we could do to at a six-month point to ask for comments on this or after a certain number of hearings, to make sure that we explicitly invite their observations on the rule as as they are being applied or some other fashion to acknowledge that we are open to their thoughts? maybe a year is a better time given that we want to have some experience with this. >> mr. st. croix, any thoughts on this? >> everything that we do is always a work in progress and i'm sure after we conduct some of the hearings under this procedure and not after, but during, we'll get feedback on
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them. so we'll pay close attention to how they go and always we intend good outcomes and hope we get them. we'll see how everything constructively works and then go from there. >> comments from the commissioners on ? i think that is reasonable and maybe the commission staff can put on the list we should revisit this in a year or so and seek comment not just from the task force, but other interested entities in how this is playing out? public comments on agenda item 8? decision point 8? >> just a quick question. what you are actually voting on here is the regulations as they appear in attachment a, is that correct? >> no. >> just the decision points drafted on november 16th? >> these are the decision
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points that we have just been discussing? >> okay. >> just wanted to clarify that. again, i absolutely understand your position this has been a long, drawn-out process and i applaud the patience you have exhibited in listening to the tax task force and listening to members of public and we move forward from here. >> thank you for saying that. is there a motion to adopt decision point 8, the san francisco sunshine ordinance regulations as amended by the commission at this meeting? >> so moved. >> second. >> all in favor? >> aye. >> opposed? hearing n

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